BRIEFING 11
ESTABLISHING AN ELECTORAL COMMISSION
Although elections in the United Kzngdom are@
andfairly conducted, the rules governing their admnistration and condud
are dated and ingcient. Labour and the Liberal Democrats have proposed establishing an electoral commission as a key element
in the reform of our electoralframework. This briejlng examines the role and_f;nctions, and the p r o m of&1khina
an
electoral commision.
Attitudes to the Existing Framework
Concern about the current electoral hamework is shared by all three main parties. The previous Home Secretary
confirmed his intention towards the end of the last Parliament to conduct a review of the rules under which the
Boundary Commissions work (House of Commons Debate, 23 January 1997);and in evidence to the Hansard
Society Commission, the Conservative Party supported changes to the rules on local expendture limits. In the
report of their Joint Consultative Committee on Constitutional Reform, the Labour Party and Lberal
Democrats expressed concern at the lack of progress which has been made in respect of reforms and
improvements to the processes of electoral r e F a t i o n and voting procedures and agreed to examine what
independent machinery may be desirable.
The Labour Party's Working Party on Electoral Systems, chaired by Lord Plant, considered wide-ranging
reform of current electoral arrangements in its 1993 report, including a r o b register, improved provision for
absent voimg and the need for national limits on election expenditure; and a commitment to establish an
electoral commission was included in the Party's 1993 document, A New Agendafor Democracy. This commitment
was referred to in Labour's proposals for determining boundaries for regional government (A New Voicefor
England's Regions, October 1996). The Liberal Democrats have focused their attention on a fundamental change
in the voting system for the House of Commons, but have also expressed support for the establishment of an
electoral commission, a rolling r e p e r and fixed term Parliaments (Here We Stand: Propos&for Modemking
Britain's Democracy, September 1993).
The Hansard Society Commission on Electoral Campaigns covered much of this ground in its report in 1991 and
since then several academic studies have explored these issues in more detad and there have been a number of
P a r l i - e n ~ debates on the subject. The key recommendation to emerge has been the eshbljshent of
c o r n s i o n . An electoral
CO&S~O~
would not in itself resolve the concerns expressed about
current electoral hamework, but its advocates believe it would strengthen the framework and provide a ,,,hde
for the development of more d e d e d reforms.
Role and Functions
A permanent electoral commission exists in most other Westminster-style democracies. Such a commission
typically has responsibility for the administration and conduct of elections and referendums. Proponents of
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electoral commfion have argued that it should take on all aspects of electoral achmtration m e n d y he
responsibility of the Home Office, Scottish Office,Northern Ireland Officeand the four Bo~ndatyCommissions.
~thas also been suggested that an electoral commission should have a 'watchdog' role, providing a Erst point of
aaess for any individualor party wishing to raise concerns about any aspect of electoral a-ation,
in&$
allegations of illegal practices. Less clear is how much responsibihty an Electoral Commission should take for the
staff involved in electoral registration (currently local authority officers) and the practical administration of '
elections and/or provide ring-fenced h d i n g for these activities.
Co-ordination, Supervision and Administration
Under current arrangements, the Home Secretary, Scottish Secretary and Northern Ireland Secretary have a
supervisory role in respect of elections and are responsible for reviewing electoral machinery and recommending
any changes in legslation. Advocates of an electoral commission argue that it would provide a m e b m for ongoing review of electoral practice which is not pursued with d c i e n t vigour at the moment. As an independent
body it could be openly critical of any elasting failings in electoral adninktration and more active in promoting
improved standards, putting forward proposals for improvements to current practice on the basis of past
experience and international best practice.
The role of an independent electoral commission may be particularly important in the context of sigm6cant
changes to the voting system. These include the possible introduction of proportional representation for elections
to the House of Commons, for elections for the European Parliament, and for the new Scottish Parliament and a
Welsh assembly. It could also play a central role in the mnduct of referendums themselves, which all parties
iriclude amongst their current policy proposals. The need for an independent statutory commission with
responsibility for the administration and conduct of referendums was a key recommendation of the recent report
of the independent Commission on the Conduct of Referendums. Similarly, if moves are made to limit national
expenditure by political parties and/or to monitor party funding more closely (or even to provide state funds for
political parties), a body independent from the Government would be necessary to take responsibility for
monitoring compliance.
In England, Wales and Scotland, electoral regwtration and the actual conduct of elections are the responsibility of
local authority electoral regwtration officers and returning officers. In evidence to the Hansard Society
Commission, the Association of Electoral Administrators argued that local authority responsibility for electoral
registration makes differences in standards inevitable. Responsibility for a national eledord registration service is
therefore one of the functions which has been proposed for an electoral commission. It is, however, unlikely that
this would entail the transfer of current electoral r e w a t i o n staff to a national agency. A more practical
approach would be for an electoral commission to have a closer supervisory role than currently undertaken by
government departments: key roles of an electoral commission could be public education relating to elections
and electoral regstration and the provision of improved training and support for r e e a t i o n and returning
officers. In addtion, the funding provided to local authorities for electoral r e p a t i o n could be clearly ringfenced. Returning officers are also like!~to continue to be drawn &om local authority staff. Again greater
consistency and improved standards could be achieved through a closer supervisory and support role by an
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electoral commission.
In Northern Ireland the roles of both electoral registration officer and returning officer are carried out by a chief
electoral officer, who is an independent Crown official. These arrangements work well. Although it may be
impractical to transfer this approach to the rest of the UK, there seems to be little point in bringing Northern
Ireland into h e with the rest of the UK purely for the sake of consistency.
Even if all of the current Home Office electoral responsibilities were transferred to an electoral commission, the
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commission would need to retain some link with a government department which had a residual responsibility
for elections. Any changes to electoral law proposed by an electord commission would still need a Minister to
support and introduce the legslation: to secure a legislative slot and to steer the legslation through Parliament.
Some technical changes might be achieved through secondary legislation and could be non-controversial; or, if
they require primary legislation, they might sometimes follow the streamlined practice adopted for Law
Commission bills. Measures which will have any impact on Parliamentary constituencies will, however, continue
to be controversial, as will any provisions relating to election campaigns and expenses.
Any controversy surrounding changes to the electoral system may be reduced if proposals originate &om an
independent body rather than &om the Government, but they will still need strong backing &om the
Government to get through Parliament. It would be unrealistic to force the Government to support legislation
proposed by an electoral commission, but procedures could be put in place to ensure that Parliament is made
aware of recommendations by the commission. The Home Secretary is currently required to place the
recommendations of the Boundary Commissions before Parliament and it would be possible to require similar
treatment for advice given by an electoral commission.
fiere may be a case for the residual responsibility for electoral matters to be moved &om the Home Officeto
the Cabinet Office, particularly if other constitutional functions are gathered there. These might include
responsibihty for referendums generally, including the referendum on reform of the electoral system. The
Ministerid lead could shift to the Leader of the House, whose role is less partisan than other members of the
Government because of the need to work across the party divide in managing the business of the House.
Boundary Reviews
The revision of constituency boundaries for Parliamentary and European elections is currently the responsibility
of four Boundary Commissions, covering England, Northern Ireland, Scotland and Wales. Each Commission is
nominally chaired by the Speaker of the House of Commons, although the Speaker does not play an active part in
their deliberations. In addition, each commission has three part-time members: the deputy chairman must be a
High Court judge (or a Court of Session judge in Scotland) and for the English and Welsh Commissions is
appointed by the Lord Chancellor, for the Scottish Commission is appointed by the Lord President and for
Northern Ireland is appointed by the Lord Chief Justice; the other members are appointed by the Government '
in consultation with the opposition parties.
The Commissions are staged by a small number of civil service secondees, with public inquiries being led by
Assistant Commissioners who are appointed by the relevant Secretary of State. The Commissions conduct a
general review of all boundaries every eight to twelve years, but can also recommend interim changes to be put
into effect at the next general election. The Comrnissions submit their recommendations to the relevant
Secretary of State, who must put them before Parliament for approval. There is ad hoc co-ordination between
the Commissions, but the Scottish Commission works to different statutory guidelines.
There is concern across the
spectrum about the way in which the Boundary Commissions currently
work. Particular points of concern have been the seemingly inevitable increase in MPs as a result of each review
and the relative over-representation of Scotland, Wales and London. Furthermore, in comparison with similar
exercises overseas, the Commissions' work has tended to be enormously time consuming (the Boundary
Commission for England's Fourth Review started in February 1991 and was not completed until
April
1995).This has resulted in two key proposals for change:
The rules governing the Boundary Commissions' reviews should be revised.
The four eg
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Commissions should be merged into a single UK electoral commission.
The Commissions currently follow rules set out in the Parliamentary Constituencies Act 1986, which speQfy
that they should as far as possible create constituencies of approximately equal electorates. The rules set out a
number of other considerations to be taken into account, such as local government boundaries, local ties and
geographical factors. It is impossible to avoid some contradiction between these consideratiom,
part of the
Commissions' task is to try to reconcile these often co&cting aims.
Population dis~butionand geography ensure that there will always be a need for some degree of compromise,
but despite a rule which states that the number of constituencies in Great Britain shall not be s u b m a y greater
or less than 613, there has been an inexorable increase in the number of MPs after each review. In 1950 there
were 625 MPs; in 1955,630; in 1974,635; in 1983,650; and, in 1997, there are 659 MPs.
The relative over-representation of Scotland and Wales results as much from historical anomaly as from any
conscious policy decision, although it is exacerbated by the way in which the Boundary Commissiom' rules are
interpreted. The Redistribution Act 1944 fixed the minimum number of Scottish seats at 71 and Welsh seats at
35. In the new Parliament there are 72 Scottish seats and 40 Welsh ones. This produces an average of 55,043
electors per Scottish seat, 54,047 electors per Welsh seat and 69,238 electors per English seat. Any review of the
redistribution of Parliamentary seats, or a merger of the B~undaryCommissions, will produce calls for the
distribution of seats to be re-examined. With devolutionback on the political agenda, the number of Scottish and
Welsh MPs will, in any case, become a matter of sharper political controversy.
The work of the Boundary Commissions is fi.u-ther complicated by the need to take into account the work of the
Local Government Commissions which review local authority boundaries and wards. The Boundary
Commissions' Fourth Reviews were based on
local authority structures, even though changes to local
government boundaries were being reviewed at the same time. This made it inevitable that there would be a
poor fit between the new local authority and constituency boundaries. The final recommendations of the Local
Government Commissions were not available in time for the Boundary Commissions to take them into account,
and the Local Government Commissions were under no obhgation to consider the use of wards in d&ing
Parliamentary constituencies when producing their recommendations. Unless some steps are taken to coordinate the two processes (as was undertaken in Northern Ireland prior to the Fourth Review and is now the
practice in Scotland) mis-matches will be difEcult to avoid.
The merger of the four existing Boundary commissions into a UK-wide electoral commission, operating under a
single set of rules, should help to ensure a consistent interpretation of the rules across the UK and improve coordination. There is also a case for incorporating the Local Government Commissions' responsibilities into those
of an electoral commission to ensure co-ordination of boundaries at all levels. Placing responsibility for all
boundary reviews in a single body with shared resources and a proactive remit may also speed up reviews.
It would be possible to introduce a single set of rules, a more consistent approach between the different
Commissions and changes to the rules to prevent a continuing increase in the number of MPs, without
establishing an electoral commission; but revising the rules would itself require primary legislation. Similarly, any
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reduction in the number of constituencies in Scotland and Wales requires a review of the statutory hamework
within which the Boundary Commissions work and, although it does not in itself point to a change in the
institutional 5arnewoz-k of the Commissions, there may be a cumulative case for an electoral commission which
would support including these changes in legislation establishing an electoral commission.
Territorial Structure
Any merger of the existing Boundary Commissions needs to retain a temtorial structure: because reviews are
best conducted by experts with an understandmg of the local political geography; and because Scotland, Wales
and Northern Ireland may have devolved assemblies with different electoral systems. The Constitution Unit's
reports on a Scottish parliament and Welsh assembly suggested that responsibility for those electoral systems
should remain with Westminster. Even ifthisrecommendation is not accepted, there is a *ong case for havlng a
single UK electoral commission to ensure uniformity in the elections for Westminster and the European
Parliament, and to ensure that the building blocks for elections at every level so far as possible coincide,
strengthening and not dividing politid communities.
Both of these criteria could be met by malang boundary reviews primarily the responsibility of national electoral
commissioners, with End approval being made at a UK level by commissioners &om all four constituent nations
of the UK and chaired by a UK electoral commissioner. Each commissioner should have the power to appoint a
national panel; and to appoint assistant commissioners to conduct boundary inquiries, as the Boundary
commissioners currently can. In addition to primary responsibility for boundary reviews, the national
commissioners should be responsible for sub-national referendums, for elections to the devolved assemblies and
for local elections. Under the additional member system of elections proposed for both the Scottish parliament
and Welsh assembly, regional r e t u m q officers will be required to distribute the additional seats allocated
proportionally: their work could be supported and supervised by the Scottish and Welsh electoral
commissioners.
Election Watchdog
Under current legplation any dsputes arising &om general election campaigns are decided by an Election Court
made up of two judges of the Queen's Bench Division of the Qh
Court. The judgement of the Election Court
takes the form of a report to the Speaker which the House of Commons is bound to act upon (Representation of
the People Act 1983). This process has been used very rarely since the 1930s and has been ~ t i c i s e das being
both complex and costly. It has been suggested that while an electoral commision would not replace the role of
an Election Court, it could provide a means by which
parties and the electorate could register thek
complaints and concerns, and that it could have responsibility for investigating mmplh@as appropriate, and at
no charge to the complainant. This could lead to a si@cant
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increase in the
of complain@-fie
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commission would need power to screen out frivolous or vexatious complaints, and to refer to an Election
Court d&icult points of election law, or serious cases where it appears the result should be annulled and a &esh
election ordered.
Further work needs to be done on the respective roles of returning officers, the electoral commission and the
court in investigatmg petitions and complaints (in particular on whether the commission should have
enforcement powers); but the ombuchmn-type role of investigating complaints is one performed by electoral
commissions overseas, and with suitable adaptation should be capable of introduction in the UK.
Setting up an Electoral Commission
The independence of an electoral commission d be ad to its successfd operation. Its independence must
therefore be clearly sgnalled and protected in its structure and organization. A commission must also be
accountable for its performance and ensure that its activities are transparent and open to satiny. The general
principles informing the governance kamework of an electoral commission are considered in the briefing on,
Constitutiond Watchdogs. Key factors such as the mechanisms by which it is held to account, the nature of its
membership and the means by which it is funded are considered below.
Accountability and Independence
An electoral commission should be independent of any government department and accountable to Parliament
to ensure that it is as far as possible protected &om political influence. The Boundary Commissions are currently
chaired by the Speaker. However, the Speaker plays no part in the proceedings of the Boundary Commissions
and the Speaker's nominal role as chair makes it d&cult for MPs to aiticise the work or methods of the
Commissions. It would be better to achieve accountability to Parliament through a select committee. This could
be done through a committee created specifically to oversee the electoral commission. This would, however,
break with the current departmental dncture of committees and could be seen as leading to a proliferation of
new committees in the House of Commons.
The development of other 'constitutional commissions' may make it appropriate for a new committee to be
created to provide them with a karnework for Parliamentary accountability. Given current arrangements, an
existing departmental committee may be the most realistic option: if responsibiliq for electoral law was retained
by the Home Office, it would sensible for the electoral commission to report to the Home Affairs Select
Committee; if responsibility were to be moved to the Cabinet Office, it should report to the Public Service
Committee.
In addition to this formal line of accountability, an electoral commission should give a wider account to other
stakeholders and to the ~ublic.This would include ensuring transparency in its actions-by, for example,
pubhhing annual reports and accounts-and engaging in consultation both in relation to boundary reviews and
on the wider issues covered by its remit.
Membership
The independence of the electoral commission will be judged by a number of factors, including the method of
appoinment and the background of the members. The requirement that the deputy chairman of the Boundary
Commissions should be a High Court judge has meant that their independence has not been brought into
question.
If membership were to be extended in order to bring a wider range of expertise into an electoral
commission,
bias could become an issue. The involvement of Parliament and the opposition parties
could provide a safeguard. Members should be appointed through a motion of the Prime Minister in the House
of Commons following consultation with the Opposition--as is the case with the Comptroller and Auditor
General. Security of tenure could also help to safeguard the commissioners' independence. Commissioners
should be appointed on a fixed-term basis with provision for renewal. Provision would also be necessary to cover
dismissal on grounds of misconduct, or inability to perform duties; with protection similar to that applying to the
judiciary .
Funding and Costs
The Boundary Commissions are currently funded out of the relevant departmental vote, but are not cash
lunited. Such an arrangement is increasingly anomalous and cannot endure. To underline an electoral
commission's independence its budget should come from the Consolidated Fund, as does the budget of the
National Audit Office. An electoral commission should as far as possible have to live within a set budget, but the
budget will fluctuate depending on the cycle of boundary reviews and the volume of loml inquiries. If the latter
continue to be unpredictable it may prove impossible to introduce a cash limited budget. The electoral
commission should submit annual budget plans and report on previous expenditure to a Parhentar-y
committee.
Our current electoral arrangements are run relatively cheaply and the establishment of a more effective electoral
commission may lead to some increase in cost. Precisely how much is diflicult to quan*
because it will depend
on the commission's range of functions and on the division of expenditure between the commission and local
authorities. The greatest area of potentially open-ended expenditure, more intensive voter r e w a t i o n , is a local
authority function and likely to remain so.
Other functions will be transferred &om the Boundary C~mnksionsand &om the Home Office with their
existing budgets. The budget of the I ~ O U ~ ~commissions
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for England and Wales in 1997-98 is around & 1 . 6 ~ ,
and the five staff in the Elections Section of the Home Office&184,000. The Boundary Commissions have a
small permanent staff seconded fi-om the Office for National Statistics, and take on extra staff according to the
f l u c t u a q workload involved in boundary reviews. The electoral commission would need a core permanent
staffbut would need to remuit temporary sta@to meet the demands of periodic reviews. The cost and duration
of these reviews depends heavily on local inquiries, which have been criticised for providing cumbersome and
d c i a l opportunities for special pleading by the parties, who will already have submitted evidence to the
review. Consideration should be given to ending local inquiries, or at least streamlining their procedures (for
example by requiring that all evidence be submitted prior to an inquiry); if achievable this could greatly speed up
boundary reviews as well as reducing their cost.
Ti mescale
Establishing an electoral commission would require legislation. A purely advisory body could be established'
without legslation, but its functions would be lunited. For an electoral commission to supervise the
administration of elections, to increase voter r e p a t i o n , to conduct boundary reviews or inves$ate complaints
requires legislation. The legislation need not confer all these hctions on an electoral commission at once. ~tmay
make sense to establish the electoral commission i n i a y as a dimhe body and to build up its functions
gradually.
Under a Labour Government, referendums may provide the key. It is unlikely that a full electoral commission
will be established in time to supervise the proposed referendums in Scotland and Wales. But electoral
commissioners could be appointed in Scotland and Wales, initially to supervise the referendum; and then to
supervise the first elections to the Scottish parliament and the Welsh assembly. These commissioners could in
due course become members of an electoral commission.
When might 1egLslation be needed to establish an electoral commission?The case for a n electoral commission is
particularly strong in relation to the proposed referendum on electoral reform. This will require a considerable
educational role about the effects of the alternative electoral systems, and could result in the need for a
hdarnental reorganization of P a r h e n t a r y constituencies. If any change resulting from a referendum is to be
implemented prior to the next general election, the referendum will need to be held, at the latest, in 1999. If an
electoral commission is to take the lead in overseeing the referendum and implemenq any consequent
boundary changes, legislation will need to be introduced at the latest in the 1998-99 Session (see the
Constitution Unit's companion briefing, Changjnfithe Electoral System).
~twould thus be possible to build up the hctions of an electoral commission gradually: starting with electoral
responsible for the devolution referendums (appointed in the Scotland and Wales referendums
le@ation) and then with supervising the elections to the devolved assemblies (authorised in the devolution
legislation). If necessary, commissioners could also be appointed to supervise early referendums on a single
currency and a strategc authority for London. Legislation establishing a f
dlelectoral commission would then be
passed in time for the referendum on electoral reform.
If the electoral commission is to be robust and independent it will in any case need a solid statutory basis.
Bringing together all of the functions proposed for an electoral commission in a single piece of legslation need
not represent as great an upheaval as appears at 6rst glance: for example the transfer of responsibility for
boundary reviews to an electoral commission would have little irnmednte effect. The next 111 review of
Parliamentary constituencies is not due to start for another five to ten years. The degree of change involved in
legislating for an electoral commission will also depend on whether it is used as an opportunity for more detailed
reform of electoral law, for example the introduction of restrictions on election expenditure, or a ro%
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r e F e r . Some of these changes may benefit by preparatory work being done by an electoral commission as part
of its general remit to review and update electoral law. Parliament may feel more confident about such changes if
they have been carefilly scrutinizedby an independent body which has engaged in the necessary consultation and
thought through the practical implications.
One solution might be to confer a power on the electoral commission to review electoral law and recommend
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changes, and empower the Government to make changes through secondary legislation subject to the aflirmative
resolution procedure. Changes to provisions for absent voting would, for example, be suitable for secondary
legislation. Other reforms, such as national restrictions on election expenditure, will clearly need to be in
primary le@tion.
There is a case for includmg any such major reforms in the legislation for an electoral
commission: as our 19th-centuryarrangements show, the opportunities for primary legislation on electoral law
will continue to be relatively rare.
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